Tuesday, October 18, 2016

City of San Diego v. San Diegans for Open Government (Cal. Ct. App. - Oct. 17, 2016)

On the one hand, sometimes, filing a petition for rehearing in order to "clear your name" sometimes makes it worse. Occasionally much worse. The Court of Appeal here discusses at length the losing party's petition for rehearing. And says the following:

"We have read and considered San Diegans for Open Government's (SDOG)
petition for rehearing. We deny the petition.

In its petition, SDOG claims that a rehearing is warranted because our opinion in
the instant matter was grounded on two "irrelevant" statutes, Revenue and Taxation Code
sections 19719 and 23300 (statutory references are to this code unless otherwise
specified). We disagree. Our holding in City of San Diego v. San Diegans for Open
Government (Sept. 22, 2016) 2016 Cal.App.LEXIS 783 was not contingent on a finding
that SDOG and/or its attorney, the Briggs Law Corporation (BLC), committed a criminal act. Instead, we determined that a suspended corporation may not recover attorney fees
under Code of Civil Procedure section 1021.5 when the corporation filed an answer in a
validation action while both it and its attorney knew it was suspended.

In its petition for rehearing, SDOG, for the first time, directly addresses the City of
San Diego's (City) argument that BLC engaged in criminal activity in violation of section
19719. SDOG acknowledges that the City raised this issue in the superior court, but
"SDOG stayed on point and did not respond to the inflammatory allegations of criminal
misconduct." In other words, SDOG did not feel compelled to provide any defense for its
actions or those of its attorney despite being accused of criminal activity.

Further, the allegations of criminal activity did not end with the City's arguments
in the superior court. In its notice of ruling and statement of reasons, the superior court
explained why it was "greatly concerned" by BLC's actions in representing SDOG in the
underlying litigation, specifically referring to BLC's "litigation misconduct" as "at best,
an ethical lapse, and, at worst, criminal behavior." And in its opening brief, the City
again cited to section 19719 and argued BLC "participated in the litigation knowing they
faced the risk of potential and criminal liability[.]" Nevertheless, SDOG did not argue in
its respondent's brief that it did not commit any crime. At most, SDOG offered a passing
argument that it was not suspended for a failure to pay taxes. It did not discuss section
19719 or otherwise contend that BLC did not violate that statute.

We observe that not only did SDOG and BLC previously fail to argue that their
actions were not criminal, they offered no explanation or justification for their actions.
They did not do so in the superior court. They did not do so in this court. Now, as part of the petition for rehearing, SDOG insists that it is entitled to yet another opportunity "to
establish facts to explain its actions." Not so. SDOG was given multiple opportunities to
explain its actions. It made the strategic decision not to do so. Merely because SDOG's
strategy did not ultimately prove successful does not compel this court to provide SDOG
with another bite of the proverbial apple.

In short, it is clear that when SDOG filed an answer in the validation action, both
SDOG and its attorney knew SDOG was suspended. It is undisputed that SDOG was not
revived until after the time lapsed by which an interested party had to file an answer in
the validation action. As such, we determined that SDOG could not recover attorney fees
under Code of Civil Procedure section 1201.5. Nothing raised in the petition for
rehearing changes this conclusion."

That's a long discourse on criminality. It highlights the allegations that the petitioning party wants removed. That's not really what you're looking for. At all.

At the same time, however, here's how the Court of Appeal ends the thing:

"That said, this court reached no conclusion that SDOG or BLC committed a crime.
We merely cited to what the superior court stated in its notice of ruling and statement of
reasons that BLC's conduct could be criminal (a statement SDOG did not challenge until
now). As SDOG insists in its petition for rehearing that neither it nor BLC have engaged
in any criminal activity by appearing in the underlying litigation and such a finding is
immaterial to our conclusion, in an abundance of caution, we will slightly modify our
opinion.

The opinion filed on September 22, 2016 is modified as follows: . . . .

On page 11, second paragraph, the second sentence is modified to read:
Additionally, BLC's explicit approval of SDOG's appearance and representation of
SDOG was, as described the superior court, unethical and perhaps criminal.

On page 12, the first full paragraph, the third sentence is modified to read: In light
of this clearly unethical and possibly criminal conduct, we expect some explanation of
BLC's actions.

On page 13, first paragraph, the first sentence is modified to read: Further
exacerbating BLC's illicit conduct here, BLC does not accept responsibility for its
actions.

On page 15, the first full paragraph, the fifth sentence is modified to read: To
require taxpayers to compensate a party or a law firm for unethical and unprofessional or
even illegal conduct, under the guise that the litigant is protecting the public interest,
would turn the private attorney general statute on its head."

Well, geeze. That's exactly what the petitioning party was looking for. So all is far from lost.

It's unclear to me (and I should probably know this) whether the long modification discourse at the outset is also published. If so, then the petitioning party isn't getting totally everything it wants. (It would be slightly weird to publish it and not simultaneously indicate the deletions in the published opinion, which leads me to believe the discourse might not be published -- or at least might look a bit strange and/or incomplete.) But if the part at the outset isn't published, then, yeah, the party that filed the petition for rehearing got a little verbal rebuke that it would prefer to do without. But then it got exactly what it wanted. So it's probably willing to take its ball at this point and go home.